Citation Nr: 0107137
Decision Date: 03/09/01 Archive Date: 03/16/01
DOCKET NO. 00-06 779 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
ATTORNEY FOR THE BOARD
W. R. Steyn, Counsel
INTRODUCTION
The veteran had active military service from March 1951 to
October 1952.
This appeal arises before the Board of Veterans' Appeals
(Board) from an August 1998 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Washington,
DC, which denied the veteran's claim seeking entitlement to
service connection for hearing loss and tinnitus.
The veteran was scheduled for a hearing before a member of
the Board in April 2001. However, by letter dated February
2001, the veteran indicated that he wished to cancel this
hearing, as he was no longer interested.
REMAND
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instruction completely.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supercedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, ___ (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand is required
to assure compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107).
The veteran is claiming service connection for hearing loss
and tinnitus. He claims that his hearing loss is due to
acoustic trauma from standing close to artillery guns being
shot off. In light of the fact that the RO denied the
veteran's claims as not well-grounded and the fact that the
Veterans Claims Assistance Act of 2000 has eliminated the
concept of a well-grounded claim, the veteran's claims for
service connection for hearing loss and tinnitus must be
remanded. The veteran should be provided with a VA
examination that discusses the nature and etiology of any
hearing loss or tinnitus. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, ___ (2000)
(to be codified as amended at 38 U.S.C. § 5103A).
On the veteran's March 1998 claim, he indicated that he had
been treated by Dr. Jaffee and at the Hearing Speech Center.
However, there is no record in the claims folder that the RO
attempted to acquire those records (although there is an
audiogram from the Hearing Speech Center from May 1999, that
record was submitted by the veteran). The Court has held
that the duty to assist the veteran in obtaining and
developing available facts and evidence to support his claim
includes the procurement of medical records to which the
veteran has referred. Littke v. Derwinski, 1 Vet.App. 90
(1990). Accordingly, the RO must attempt to obtain all
treatment records from Dr. Jaffee and from the Hearing Speech
Center. Also, as the veteran claimed in March 1998 that Dr.
Jaffee told him that his hearing loss was due to acoustic
trauma, the RO must inform the veteran of his interest in
obtaining a statement from Dr. Jaffee to the effect that his
hearing loss was due to acoustic trauma in service.
Accordingly, this case is REMANDED for the following:
1. The RO and any physician to whom this
case is assigned for an examination and/or
a statement of medical opinion must read
the entire remand, to include the
explanatory paragraphs above the numbered
instructions.
2. The RO should take appropriate steps
to obtain and associate with the claims
file any copies of VA and private medical
records regarding the veteran's hearing
loss and tinnitus that have not already
been associated with the claims folder.
In particular, the RO should obtain all
treatment records from Dr. Jaffee, and
the Hearing Speech Center. The RO should
inform the veteran of his interest in
obtaining a statement from Dr. Jaffee
regarding his hearing loss being due to
acoustic trauma in service.
3. The veteran should be scheduled for a
VA audiological examination. The
examiner must thoroughly review the
claims folder in conjunction with
evaluating the veteran. The examiner
should specifically answer the following
questions:
a. Does the veteran have hearing
loss?
b. If the veteran does have hearing
loss, state a medical opinion as to
the time of onset of the disorder.
c. If the veteran has hearing loss
that first became manifest after his
active service, the examiner should
state, as a matter of medical
judgment based on the entire record,
whether it is at least as likely as
not that the hearing loss is the
result of acoustic trauma in
service.
d. Does the veteran have tinnitus?
e. If the veteran does have
tinnitus, state a medical opinion as
to the time of onset of the
disorder.
f. If the veteran does have
tinnitus, state a medical opinion as
to whether it is at least as likely
as not that the hearing loss is the
result of acoustic trauma in service
All appropriate testing in this regard
should be accomplished. A complete
rationale for any opinion expressed must
be provided. If the examiner can not
answer any of the above questions, he
should so state.
4. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.
5. After the development requested above
has been completed, the RO should review
the veteran's claims folder and ensure
that all the foregoing development has
been conducted and completed in full. If
any development is incomplete, appropriate
corrective action should be taken.
6. The RO should readjudicate the
veteran's claims for service connection
for hearing loss and tinnitus. If the
benefits sought on appeal remain denied,
the appellant and the appellant's
representative, if any, should be provided
with a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
G. H. Shufelt
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).